PERERA v. GOMES, ATTORNEY-AT-LAW

﻿
sc
Perera v. Gomes, Attorney-at-law
119
PERERA
v.GOMES,
ATTORNEY-AT-LAW
SUPREME COURTG. P. S. DE SILVA, CJ.,
RAMANATHAN, J.
SHIRANI BANDARANAYAKE, J.
S.C. RULE NO. 8/95 (D)
FEBRUARY 11, 1997, MARCH 11, 1997,
MAY 26, 1997, JUNE 11, 1997, JULY 22. 1997,
AND JULY 30, 1997
Professional misconduct of Attomey-at-law – Rule 61 of the Supreme Court(Code of Etiquette for Attorneys-at-law) Rules 1988.
Held:
It was not proper for the respondent (Attorney-at-law) to instill a belief in thecomplaint that the amount paid (Rs. 5,000) was sufficient for the case he hadfiled. It was also not proper for the respondents to accept a case against thevery person who had introduced the client to him. It was also not at all properfor an Attorney-at-law, to have kept the money with him, after handing over thecase to another lawyer. The respondent should have returned the money to thecomplainant. The respondent has thereby failed to discharge his professionalobligations and acted in a manner unworthy of an Attorney-at-law and committeda breach of rule 61 of the Supreme Court (Code of Etiquette for Attorneys-at-law) rules 1988.
Two other charges of intentionally, wilfully and fraudulently cheating the clientand of disgraceful and dishonourable conduct were held not proved.
Obiter:
It was not proper for the respondent to have acted as an Attorney-at-law or NotaryPublic in a transaction between the complainant and his daughter (ie daughterof the Attorney-at-laws/Notary Public).
In the matter of rule in terms of section 42 (2) of the Judicature Act, No. 2 of1978.
Kolitha Dharmawardena, DSG with S. Rajaratnam, SC for the Attorney-General.
120
Sri Lanka Law Reports
[1998] 3 Sri LR.
E. D. Wickramanayake with Miss Anandi Cooray for BASLK. M. P. Rajaratne for respondent.
Cur. adv. vult.
August 28, 1997
SHIRANI A. BANDARANAYAKE, J.
Mr. D. J. Perera, who was about 85 years old in 1993, complainedthat he paid Rs. 5,000 to Mr. Gomes, an Attorney-at-law (respondent)on 23.11.1990 to institute action against Sampath Property Trades.Mr. Gomes had issued a receipt in respect of this payment. After awhile Mr. Gomes had told Mr. Perera, that as he knew the companyin questjon quite well, he would arrange for another lawyer knownto him to deal with the case. Since 1990 Mr. Gomes was appearingfor Mr. Perera in four (4) of his cases at the District Court ofPolonnaruwa. Mr. Perera was paying Mr. Gomes Rs. 2,500 per dayfor this purpose. On one occasion when Mr. Gomes came toPolonnaruwa he had informed Mr. Perera that he had entrusted theSampath Property Trades matter to Mr. H. D. Tissa Gunawardene,Attorney-at-law, Gampaha. Further Mr. Gomes had said on that occasionthat he would bear all Mr. Gunawardene's expenses.However when the Gampaha case had reached the stage of executionof writ, Mr. Perera found that Mr. Gomes had not paid Mr. Gunawardeneand Mr. Perera had to pay him Rs. 3,700 on different occasions.
It was the case for the complainant that, on one occasion whenMr. Gomes came to Polonnaruwa to appear in the District Court, hehad made a request for 10 perches from a land situated at Gonahena,Kadawatha, belonging to Mr. Perera. When Mr. Perera agreedMr. Gomes had stated that the 10 perches was not sufficient andasked for 20 perches. At. this time Mr. Perera had blocked out theland to give it to his three (3) children and there was a 23 perchblock remaining. If the value of a perch was Rs. 7,500 this block wouldhave been about Rs. 172,500. However, as Mr. Gomes had takena keen interest in his affairs and Mr. Gomes appeared to be veryclose and sincere towards Mr. Perera, he agreed to give this blockof land as a gift to Mr. Gomes. Accordingly, Mr. Gomes had obtainedMr. Perera's signature on 19.12.1991 on 4 printed forms of deedsof gift. On the same day Mr. Gomes had given a letter to Mr. Pererainforming the latter that he (Mr. Gomes) will appear free of charge
sc
Perera v. Gomes, Attorney-at-law
(Shirani A. Bandaranayake, J.)
121
in all his cases and would bear all the expenses in these cases.Mr. Gomes had also obtained Rs. 15,000 from Mr. Perera stating thathe was short of money to construct a house in another land of his.However, Mr. Gomes had not borne the expenses, as promised, andMr. Perera had written to Mr. Gomes on 22.02.1993 requesting himto retransfer the block of land given to him and calling for a replywithin 14 days. Mr. Gomes sent his reply on 11.03.1993 stating thatthe deed in question is not a gift but a transfer of the said blockof land to his daughter for a sum of Rs. 30,000.
The observations of Mr. Gomes was called for and he failed tosatisfactorily explain his conduct to this court. Therefore on 02.06.1995a rule was issued directing Mr. Gomes to show cause why he shouldnot be suspended from practice or be removed from the office ofAttorney-at-law of the Supreme Court for acts of deceit, malpracticeand cheating he had committed (section 42 (2) of the Judicature Act).
The complainant, D. J. Perera, who is paralysed and bedriddenwas not in a position to give evidence. 3 witnesses were called togive evidence in support of the rule. They were the wife of thecomplainant, Wimala Ellapitiya, Tissa Gunawardene, Attorney-at-lawand L. L. Wanigasekera, Attorney-at-law and Notary Public. Therespondent, his daughter Aloma Gomes and H. A. Sahara gaveevidence for the respondent. Under the rule issued on the respondent3 charges were framed against him.
The first charge was that the respondent had failed to dischargehis professional obligations and had acted in a manner unworthy ofan Attorney-at-law and has committed a breach of rule 61 of theSupreme Court (Code of Etiquette for Attorneys-at-law) rules 1988.This charge was based on the following complaints:
on 23.11.1990, the respondent had received from the complainanta sum of Rs. 5,000 to appear and attend to all professional mattersin connection with case No. 34189/M in the District Court ofGampaha, instituted by the said complainant;
on that occasion the respondent informed the complainant that hewould not be able to appear in the said case, but undertook toretain the services of another Attorney-at-law, namely TissaGunawardena, Attorney-at-law of Gampaha, by using the said sum
122
Sri Lanka Law Reports
[1998] 3 Sri LR.
of money already accepted by the respondent, but misappropriatedthe said sum of money and the complainant was thereforecompelled to pay fees again to the Attorney-at-law.
It is common ground that the respondent had taken Rs. 5,000 fromthe complainant. Document P (8) b, dated 23.11.1990 confirms andsupports this fact. The learned DSG, pointed out that after acceptingthe money and establishing a client-attorney relationship therespondent had drafted the plaint. Thereafter the respondent handedover the responsibility to Tissa Gunawardena. However, therespondent did not hand over the money that was given to him bythe complainant to Gunawardena. Instead, the respondent hadinformed the complainant that he would pay for Gunawardena'sservices.
The respondent was of the view that he had to hand over thiscase to Gunawardena as he knew the defendant in this case quitewell. The complainant was filing this case against Alahakoon, theperson who had introduced the complainant to the respondent. I agreewith the view expressed by the respondent that he could not havehandled this case due to the abovementioned reason. However, inmy view, the respondent should not have accepted this case fromthe complainant at all. If, due to the relationship he had with thecomplainant, the respondent had felt obliged to assist the complainant,the respondent could have introduced a lawyer to the complainant,explaining his difficulty in dealing with this particular case. Afterundertaking the case the respondent had accepted Rs. 5,000 from- the complainant. Out of this Rs. 5,000 according to Gunawardena,he was paid only a very small sum of money. However, on theinsistence of the respondent, Gunawardena had given a receipt forRs. 1,400. The learned DSG submitted that the position of therespondent is that he had paid a total of Rs. 2,100 to Gunawardena.Mr. Rajaratne, learned counsel for the respondent, submitted thatGunawardena has stated in his evidence that he had taken Rs. 4,000from the complainant. He had taken Rs. 2,000 out of this money forappearances and work prior to the ex parte decree and Rs. 2,000for work in connection with the execution of the ex parte decree.Counsel submitted further that Wimala.Ellapitiya in her evidence statedthat Tissa Gunawardena was paid for appearances and work beforethe ex parte decree. Mr. Rajaratne also submitted that there was noquestion of execution of the ex parte decree because the defendantin this case had appeared in court and obtained permission to appear
sc
Perera v. Gomes, Attomey-at-law
(Shirani A. Bandaranayake, J.)
123
and defend after the payment of Rs. 1,000 as costs to the plaintiff.Therefore there was no need to execute the ex parte decree.Mr. Rajaratne urged that it is also the evidence of Wimala Ellapitiyathat Tissa Gunawardena wanted 'additional expenses' for the purposeof executing the ex parte decree. The complainant had got very angrywith the respondent becuase additional expenses had not been paidby the respondent. Accordingly the submission on behalf of therespondent was that Tissa Gunawardene had misled the complainantand made him angry with the respondent.
The respondent in his evidence stated that in addition to the moneygiven to Tissa Gunawardena, the respondent had paid stamp feesRs. 385 and a further sum of Rs. 2,000 to senior counsel,Mr. Kotelawala for consultation and drafting the plaint. Mr. Rajaratne,submitted that this evidence was not challenged. Further it was saidfor the respondent that in spite of the attitude of the complainanttowards the respondent, the respondent had written to the complainanta letter (8E) dated 11.03.1993 asking the complainant to see therespondent so that he could complete all future work.
Tissa Gunawardena in his evidence stated that on 09.07.1991 therespondent came and wanted him to handle a case and at that timethe case was not filed. On that day the respondent had given a cashcheque for Rs. 500 to Tissa Gunawardena. The respondent hadprepared the plaint. At the request of the respondent Tissa Gunawardenahad given a receipt stating that he has received Rs. 1,400 from therespondent. He accepts that the complainant gave him Rs. 4,000;Rs. 2,000 for the appearances and Rs. 2,000 for execution proceed-ings. He clearly stated that the respondent paid him only Rs. 1,100.According to Tissa Gunawardena, he had been assisting the respond-ent in some other cases as well. When the respondent requested fora letter for Rs. 1,400, Tissa Gunawardena had issued this letter statingthat Rs. 1,400 was paid for the services he had rendered in the34189/M case. Five (5) cheques were produced alleging paymentsmade to Tissa Gunawardena.
-Rs.300(R1)
-Rs.300(R2)
-Rs.500(R3)
-Rs.300(R4)
-Rs.500(R5)
124
Sri Lanka Law Reports
[1998] 3 Sri LR.
All these cheques were cash cheques. There is no evidence toshow that these cheques were paid to Tissa Gunawardena. Even ifwe accept the letter issued by Tissa Gunawardena, it shows that therespondent has paid him only a sum of Rs. 1,400. According to therespondent, he had paid a sum of Rs. 2,100 to Tissa Gunawardenaand had not returned any money to the complainant. However, thereis nothing to show that these amounts were given to Tissa Gunawardena.In these circumstances, the only acceptable evidence is in regard tothe payment of Rs. 1,400 to Tissa Gunawardena. Accordingly, I holdthat the respondent should have returned the balance amount to thecomplainant, which he has not done.
Based on the facts of this complaint, the learned DSG, has drawnour attention to a number of issues regarding the discharge ofprofessional responsibility of an Attorney-at-law:
Whether it was proper for an Attorney-at-law to instill the beliefin a client that Rs. 5,000 is for the costs of an entire civil casewhere the cause of action was over Rs. 100,000?;
Whether it was proper for an Attorney-at-law to accept a caseagainst the very person who introduced the client to him. Is it properfor an Attorney-at-law to accept fees for the case againstMr. Alahakoon, draft the plaint on which the case proceeded andthen to retain the fees and seek services of another Attorney-at-law to appear in court?
Was the respondent conducting himself professionally with regardto the case, or did he abandon his professionalism and performedas the Manager of the client's fees, representing to him that therespondent would nevertheless bear all the costs of the case forthe fee of Rs. 5,000 paid to him?
I am of the view that all three” questions raised here are of highimportance. Taking into account the circumstances of this case, it wasnot proper for the respondent to instill a belief in the complainant thatRs. 5,000 was sufficient for the case he had filed. It was also notproper for the respondent to accept a case against the very personwho had introduced the client to him. It was also not at all properfor an Attorney-at-law, to have kept the money with him, after handingover the case to Tissa Gunawardena. The respondent should havereturned the money to the complainant.
sc
Perera v. Gomes. Attorney-at-law
(Shirani A. Bandaranayake, J.)
125
In the circumstances, I am of the view that the respondent hasfailed to discharge his professional obligations and had acted in amanner unworthy of an Attorney-at-law and has committed a breachof rule 61 of the Supreme Court (Code of Etiquette for Attorneys-at-law) rules 1988. I hold that charge No. 1 has been established.
The second charge was that the respondent had intentionally,wilfully and fraudulently cheated his client of his property by actingin a manner prejudicial to him. This charge is based on the followingcomplaint:
a. The respondent had originally requested the complainant to giftto him an extent of 23 perches of land owned by the complainantin Kadawatha and subsequently executed a deed of sale bearingNo. 30 dated 05.04.1992 attested by L. L. Wanigasekera, Attorney-at-law and Notary Public, Colombo, for the consideration ofRs. 30,000 in favour of the respondent's daughter, Aloma Gomes.
This charge related to a land transaction in which 23 perchessituated at Gonahena, Kadawatha, was given to Aloma Gomes, therespondent's daughter. According to the respondent, this was a deedof transfer for a consideration of Rs. 30,000, where as the case forthe complainant was that the block of land was given to the respondentas a gift at his request. According to Wimala Ellapitiya, this land wasgifted by her husband to the respondent, on the assurance that therespondent would appear and meet all expenses of any furtherlitigation that may arise in which the complainant is a party. Thisassurance is established by document P (8)a dated 19.12.1991, writtenand signed by the respondent.
The learned DSG submitted that the land transaction was a giftmade at the request of the respondent. According to witness WimalaEllapitiya, no money was given and the land was gifted by thecomplainant at the request of the respondent. The only considerationwas the written promise in P (8)a. The learned DSG submitted thatthe contents of P (8)a admitted by the respondent, strongly corrobo-rates this position. According to the evidence and the submissionsby the learned DSG, there is a strong suggestion that no considerationactually passed between the complainant and the respondent and/or his daughter. According to the respondent and his daughter themoney was paid at home and no receipt was obtained for the trans-action. No other person had witnessed this transaction. However,according to the reply sent by the respondent as his observationsmade on the petition of the complainant, the money was given by
126
Sri Lanka Law Reports
[1998] 3 Sri L.R
the respondent and not by the daughter, to the complainant. Thisdocument (P6) was shown to the respondent at the inquiry and hehad ample opportunity to read and explain while giving evidence.
The Notary Public, L. L. Wanigasekera, stated that the deed wasnever executed before him. He was given a deed which was alreadysigned and he later attested it on the insistence of the respondent.There are several significant facts to be noted in the transactionrelating to this deed:
According to Wimala Ellapitiya, the respondent had taken thesignatures of her husband and herself on blank printed forms on
The contention was that these forms included the deedof gift of the 23-perch block of land given as a gift to the respondent.The respondent stated that in December, 1991, Wimala Ellapitiyawas not living with the complainant and therefore it was not possiblefor this to have happened.
The deed of transfer is dated 05.04.1992. However, the respondentand the witnesses for him, Aloma Gomes and H. A. Sahara gaveevidence to the effect that the deed was executed on 11.03.1992.They stated that the complainant, his wife, Wimala Ellapitiya andthe Notary Public, L. L. Wanigasekera, were present at the timeof the attestation. The Notary Public in his evidence stated thatonly one witness was present at the time of the attestation. Hefurther stated that when the deed was given to him it had a datein December, 1991. He had erased that date and the new date
was typed.
The attestation bears several alterations and interpolations. Thereis an interpolation showing that consideration had passed earlierand in accordance with the Notaries Ordinance in the presenceof Mr. Gomes, Attorney-at-law. The learned counsel for therespondent in his submissions states that deed P9 is a photostatcopy of the second copy of L. Is. Wanigasekera, which was sentto the Colombo Land Registry. X5 is the original of deed No. 30attested by Wanigasekera and sent to the Gampaha Land Registry.The interpolations and erasure marks of X5 and P9 are similar.Wanigasekera admits that attestation was done by him. Prior tothe registration the deeds were in the custody of Wanigasekera.For these reasons the learned counsel for the respondent submitsthat the interpolations and the erasure marks on X5 and P9 arethe work of Wanigasekera who attested deed No. 30 and therespondent had nothing to do with it.
sc
Perera v. Gomes, Attomey-at-law
(Shirani A. Bandaranayake, J.)
127
Taking into consideration the evidence that was led by thecomplainant and the respondent, I am of the view that there was noproof to show whether the deed was executed on 19.12.1991 or
or as it appears on the deed, on 05.04.1992. I am moreinclined to accept the view put to us by the complainant that thehusband and wife had signed a blank form on 19.12.1991. Even tothe naked eye, the faint letters of 'December' in Sinhala could be seenin two places. This word has been erased and the word 'April' inSinhala has been typed on top of that. I would have certainly acceptedthis position if not for the slight doubt that was created in the mindas to whether Wimala Ellapitiya was living with thecomplainant during this period or not. However in my view there wasno consideration given by either the respondent or his daughter forthis transaction.
According to the different circumstances which had occurred in thismatter, it is strange .that no receipt was issued for the alleged paymentof Rs. 30,000 given prior to the execution of the deed. I hold thatthe following matters have been proved' beyond reasonable doubt:
The respondent gave a written undertaking that he would appearfor all subsequent litigation and meet all expenses in respect ofsuch litigation;
A land transaction took place between the complainant and therespondent or the complainant and the respondent's daughter.According to the deed P9, the transaction was between thecomplainant and the respondent's daughter. However, thetransaction took place with the full knowledge of the respondent;
The execution of the deed and/or the attestation of the deed wascarried out both by Wanigasekera and the respondent. Therespondent clearly had knowledge of the execution and theattestation of the deed.
The learned DSG submitted that the attestation page of the deeditself raises many questions of propriety. On the face of the attestation,there are a number of deletions, alterations and interpolations, stronglysuggestive of the fact that the deed is not what it purports to be.I am in agreement, with the submission that it was anyway not properfor the respondent to have acted as an Attorney-at-law or a NotaryPublic, in a transaction between the complainant and his daughter.
128
Sri Lanka Law Reports
[1998] 3 Sri LR.
On a consideration of all the facts and circumstances, I hold thatthe crucial ingredient of 'dishonesty' has not been established withthe required degree of certainty. The second charge has thereforenot been proved, particularly in the absence of the evidence ofD. J. Perera.
The third charge is that the respondent has conducted himself ina manner which is reasonably regarded as disgraceful ordishonourable by Attorneys-at-law of good repute and competency.This charge is based on the following facts:
a. The respondent had on several occasions borrowed money fromthe said complainant on the undertaking and promise that he, therespondent would either repay them or appear on behalf of thesaid complainant in his cases and would set off those sums thusborrowed against the fees that would become due to the respondentfrom the said complainant.
The respondent has admitted that he had borrowed Rs. 15,000on 26.06.1991. This is established by document P (8)c wherein hehad promised to repay the money in 6 months. This has been admittedby the respondent. However, according to documents P (8)d and P(8)e, and the letter dated 13.07.1992, the respondent had failed torepay the money even after one year. The respondent in his evidenceadmitted that even by 13.07.1992, this money was not paid. By thistime the respondent had given a firm assurance by letter to thecomplainant that he would appear and bear all the expenses of allfuture cases of the complainant (letter dated 19.12.1991). The re-spondent had no proof to show that he had repaid this money. Itwas Wimala Ellapitiya in her evidence who said that the loan ofRs. 15,000 was paid by the respondent. I hold that the third chargehas not been established.
I hold that the first charge has been proved and I make orderthat the respondent in these proceedings, P. D. Gomes, be suspendedfrom practice for a period of 6 months from today.
G. P. S. DE SILVA, CJ. – I agree.
RAMANATHAN, J. – I agree.
Attorney-at-law suspended for 6 months.